Kessler v. Boresz

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/3/2017 GRANTING 2 Motion to Proceed IFP and DISMISSING 1 Complaint with leave to amend within 30 days. Plaintiff to pay the statutory filing fee of $350. All payments to be collected in accordance with the notice to the Sheriff of Sacramento County filed concurrently herewith. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WESLEY WILLIAM KESSLER,

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Plaintiff,

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No. 2:16-cv-1552-EFB P

v.

ORDER

J. BORESZ,

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Defendant.

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Plaintiff is a county inmate proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He has filed an application to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915.

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I.

Request to Proceed In Forma Pauperis
Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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II.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion
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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

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plain statement of the claim showing that the pleader is entitled to relief, in order to give the

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defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

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678.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

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plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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III.

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Screening Order
The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and finds

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that it must be dismissed with leave to amend. Plaintiff names Officer J. Boresz as the defendant.

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According to the complaint, plaintiff was “asked to prone out a certain way” while he was being

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arrested. ECF No. 1 at 3. Plaintiff informed the defendant that he could not prone out as
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requested due to a recent operation on his shoulder. Id. Defendant then “demanded” that plaintiff

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prone out, and plaintiff maintained that he could not. The defendant then grabbed plaintiff’s right

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hand and twisted it behind plaintiff’s back, causing injury to plaintiff’s right rotator cuff. Id.

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Plaintiff seeks compensatory and punitive damages as relief. Id. Although plaintiff does not

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identify any claims for relief, it appears that he wishes to pursue a claim of excessive force.

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However, as explained below, plaintiff’s scant allegations are not sufficient to state a claim upon

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which relief could be granted. To proceed, plaintiff must file an amended complaint.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged violation was committed by a person acting under the color of state law. West v. Atkins,

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487 U.S. 42, 48 (1988). An individual defendant is not liable on a civil rights claim unless the

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facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

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connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

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See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

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(9th Cir. 1978).

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In order to state a claim for the use of excessive force by a pretrial detainee, a plaintiff

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“must show only that the force purposely or knowingly used against him was objectively

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unreasonable.” Kingsley v. Hendrickson, __ S. Ct. __, 2015 U.S. LEXIS 4073, at *12 (June 22,

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2015). Plaintiff does not allege that defendant forced him to prone out in the position to which

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plaintiff objected. Plaintiff merely alleges that, despite informing defendant of a “recent”

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shoulder operation (without specifying right or left), defendant twisted plaintiff’s right hand

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during the course of arrest. Plaintiff alleges no other facts regarding the circumstances at the time

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of his arrest. These allegations fail to show that defendant’s use of force was objectively

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unreasonable. Plaintiff may be able to state a cognizable excessive force claim if he can allege

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facts demonstrating that the force used was objectively unreasonable under the circumstances.

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Plaintiff will be granted leave to file an amended complaint, if plaintiff can allege a

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cognizable legal theory against a proper defendant and sufficient facts in support of that

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cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints). Should plaintiff choose to file an amended complaint, the amended complaint

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shall clearly set forth the claims and allegations against each defendant.

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Any amended complaint must not exceed the scope of this order and may not add new,

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unrelated claims. Further, any amended complaint must cure the deficiencies identified above

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and also adhere to the following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation). It must also contain a caption

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including the names of all defendants. Fed. R. Civ. P. 10(a).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. L.R. 110.

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IV.

Summary of Order

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in

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accordance with the notice to the Sheriff of Sacramento County filed concurrently

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herewith.
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3. The complaint is dismissed with leave to amend within 30 days. The amended

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complaint must bear the docket number assigned to this case and be titled “First

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Amended Complaint.” Failure to comply with this order will result in this action

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being dismissed for failure to state a claim. If plaintiff files an amended complaint

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stating a cognizable claim the court will proceed with service of process by the United

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States Marshal.

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Dated: October 3, 2017.

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